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This book is a collection of the Hugo Grotius Lectures on Arbitration given at the Royal Academy of Jurisprudence and Legislation of Spain in the period 2008-2019 organised by CIAMEN (International Centre for Arbitration, Mediation and Negotiation) of the Universidad San Pablo CEU. Since its foundation in 2004, CIAMEN has acted as an academic centre promoting ‘arbitration culture,’ setting up a whole series of activities –monthly seminars, lectures and seminars with the main arbitration courts, publications and the journal ‘Arbitraje’– aimed at promoting debate and good practice among the Spanish and international arbitration communities (with particular attention to Latin American countries) in open dialogue with companies and sectors involved in alternative dispute resolution methods.

Each year during this period, in the month of May or June and in the incomparable setting of the Plenary Hall of the Royal Academy of Jurisprudence and Legislation, an institution founded by the Count of Floridablanca in 1763 (and designated a World Heritage Site by UNESCO in 1998), a speaker of great international prestige in the area of arbitration gives a masterly lecture on a subject freely chosen for its current importance or interest to a group of legal experts on arbitration matters. In this way, well-known international arbitrators, some of them true ‘founding fathers’ of contemporary arbitration and international economic law, together with presidents, former presidents and secretaries-general of some of the main arbitration courts (ICC, ICSID, PCA, LCIA) have had the opportunity to express their opinions, sometimes with great passion, as can be seen from the texts that make up this volume, on issues that seemed particularly appropriate to them at the time of their lectures. This book has thus emerged over time as a compendium or overview of multiple issues related to national and international arbitration. The lectures constitute exquisite miniatures or aperçus through which the vast landscapes of arbitration within the framework of international economic law are contemplated. This includes issues related to commercial arbitration, investment arbitration, arbitration between states and arbitration with the participation of state entities or companies.

The aim was to maintain the original text of the conferences with a minimum of editorial work in order to preserve the liveliness and freshness of the oral presentations together with the originality of the proposed themes. In this way the reader can enjoy perusing lectures that on many occasions –and beyond their contemporaneity– distil the wisdom and practice of many years dedicated to the resolution of complex cases sometimes subject to a variety of legislation and rules of procedure, with different plaintiffs and defendants and with a diversity of claims and arbitration decisions, as is usual in international arbitration.

The journey begins with the American arbitrator and lawyer David Rivkin, a past president of the International Bar Association, with an innovative proposal in relation to commercial arbitration: to return to the origins, to recover the supposed (ideal) model of the primitive arbitrators or mediators who resolved disputes in their communities on the basis of common sense, experience and balance of interests, what Rivkin calls the Town Elder Model. It is based on a conviction that the current challenges in arbitration stem from its undeniable success, from a global expansion of arbitration as a method of resolving international commercial disputes that has been unprecedented in recent decades.

From this perspective, when analysing the challenges Rivkin also suggests proposals for improvement, many of which have been adopted by the main arbitration courts in recent years and constitute the set of rules that make up the practice of arbitration in the world today. These range from the problems that arise in the selection of arbitrators to document discovery and its limits –as an originally Anglo-Saxon (and in particular American) technique for obtaining documents– to the increasingly frequent use of electronic documents as evidence, to questions of efficiency in relation to time, costs and the workload of international arbitrators and to the more substantial problems relating to public policy issues that are increasingly arising in relation to arbitration. Rivkin ventures to propose ‘radical’ solutions and a return to basic principles in a methodology somewhat similar to what economists call the ‘zero budget’ and thus to make a root decision at the beginning of the arbitration procedure according to which the parties and the arbitral tribunal concentrate on those phases and instruments of the arbitration process that are truly essential to bring the arbitration to a successful conclusion with an award that satisfies the parties in their claims. In the tension between applying different methods to radically improve efficiency and obtaining a correct decision, Rivkin clearly opts for a more proactive role of arbitrators, who he sees taking greater control over the procedure.

In the second chapter, we hear the voice of a great master of Spanish commercial law, Professor Manuel Olivencia, who we remember so well. He passed away in 2018. With his unparalleled diction and legal precision, Olivencia deals with a central issue in arbitration, the award, its content and its varied typology, and through an exhaustive analysis of Spanish law he puts forward solutions to the problems it poses and its generic treatment. This includes the definition of the award, the differentiation between partial awards and final awards, the content of partial awards, awards by agreement of the parties and issues related to the content of awards: the rules governing them, the reasons for the award, the date and place, the costs, the necessary signatures and dissenting opinions. Finally, Olivencia details requirements not demanded by the Spanish Arbitration Law.

Next up is another major Spanish international arbitrator, Bernardo Cremades, who goes into the question of states’ participation in international arbitration, a subject the doctrinal development of which he depicts from the perspective of someone who has been personally involved in its progressive shaping for decades, including with illustrative personal anecdotes originating in Spain’s ratification of the 1965 Washington Convention. Professor Cremades’s detailed and very interesting journey takes us from the protection of state sovereignty at the international level through the abandonment of the Calvo doctrine to the creation of globalised administrative law and the practice of international arbitration as a consequence and, at the same time, as a catalyst for the internationalisation of administrative contracts. Cremades analyses the growing presence of states in international commercial arbitration, the expansion of investment protection arbitration and arbitration involving state entities, and arrives at confirmation of the criticisms that have been made in recent years of the alleged ‘submission’ of state sovereignty to international arbitration. The question this raises is whether, perhaps ironically or paradoxically, what is being sought with these criticisms could be nothing other than a return to the outdated Calvo doctrine.

The fourth chapter is a brilliant presentation by the Secretary-general of the Permanent Court of Arbitration of The Hague (PCA), Ambassador Christian Kröner, on the current situation of arbitration involving states in their multiple dimensions, with historical reference to the work of Hugo Grotius and its meaning, not only as one of the founding fathers of international law but also as a lawyer and advocate, as in the case which gave rise to the Grotian argument about the freedom of the seas, Mare liberum, the right of the Dutch East India Company to break the commercial monopoly of the Portuguese (and the Spanish) on the seas of the territories they discovered.

As globalisation –says Kröner– transforms the content of our interactions and generates new questions, and inevitably new sources of conflict, demanding a quicker adaptation of the institutions responsible for administering justice, the flexibility inherent in arbitration essentially contributes to the protection and advance of the international order. This capacity for innovation and adjustment to change is evident not only in the field of procedure but also in that of the substantial development of international law, without this implying that arbitration has a legislative function.

In conflicts in an interconnected world, adds Körner, “the law may not always provide the solution, but it does offer a universal vocabulary –a lexicon– of principles and understandings on the basis of which conflicts can be negotiated, or resolved by an arbitration award. Arbitration is undoubtedly imperfect and in need of permanent correction and improvement, but –in accordance with the Grotian model of an open world– it also constitutes, in its continuous adaptability and experimentation, one of the best possible responses to the challenges of globalisation.”

In the fifth chapter, former ICC President John Beechey takes an original approach to various elements related to arbitration –evidence and forensic argument– through the figure of the great English writer, literary critic and unofficial lawyer Dr. Samuel Johnson, the editor of the Shakespeare œuvre in 1756 and author of the preface with which modern literary criticism of the playwright began. As Lord Bingham, considered one of Britain’s most prestigious judges in the last hundred years, stated, “Dr Johnson said more intelligent things about the law than any lawyer who has ever lived.”

Johnson, gifted with an insatiable curiosity for intellectual knowledge, never obtained a diploma qualifying him to practise law but he did obtain two honorary doctorates, awarded by Trinity College Dublin and Oxford University, and an extraordinary library of legal texts, including the works of Hugo Grotius. With this background, it was not uncommon for him to make sharp remarks about the legal profession and judges in his writings and to give advice to lawyers and parliamentarians, highlighting above all the characteristics of a good forensic style: accuracy, precision and fairness in the use of analogy.

It was also Dr Johnson who wrote many of the writings used by James Boswell –ninth Laird Auchinleck and author of the celebrated Johnson biography– in his court appearances. For John Beechey, the principles upheld by Dr. Johnson are still fully valid today, including in arbitration practice. His relationship with Grotius and what Grotius represented was so empathetic that he went so far as to say that he would not change places with anyone in the world except him, adding that anyone interested in human knowledge would always learn something from the Dutch erudite.

In the following year’s conference, Meg Kinnear, Secretary-general of the International Centre for Settlement of Investment Disputes (ICSID), delighted us with a presentation on current innovations in investment arbitration. She began by pointing out the advantages of including dispute resolution mechanisms in treaties between investors and states: they are useful tools for depoliticising disputes by removing them from the realm of diplomatic relations and they provide future investors with the assurance that an impartial and effective system exists to resolve potential treaty violations. When the ICSID Convention was adopted and the Centre was set up in Washington in 1966, it applied the principles conducive to economic development that had led to the establishment of the World Bank, namely creating an atmosphere of trust between states and encouraging the flow of private investment in countries wishing to attract foreign investment. The consequences in terms of the number of investment treaties (BITs, Bilateral Investment Treaties) in force have been very successful, rising from 385 at the end of the 1980s to over 3,200 today, with a corresponding increase in cases.

Of course, the central part of Meg Kinnear’s presentation dealt with the criticism of investment arbitration in recent years. In contrast to commentators who believe that a progression in investment flows thanks to BITs is not evident, the ICSID Secretary-general pointed out that most states evaluate these agreements positively, not only from the perspective of investment but also from that of good governance. Regarding the arguments of lack of uniformity in the awards and in the applicable substantive standards, Meg Kinnear underlined the high degree of consistency existing in the system as a whole and the successive reforms that have been introduced to further delimit the substantive standards to be applied, including with respect to the regulatory environment and the public policy objectives of states.

The Secretary-general of the ICSID also highlighted some of her institution’s recent innovations in relation to access to documents, access to hearings, written interventions by third parties and the new rules allowing a party to object from the outset to a complaint with a manifest lack of content. Finally, Ms. Kinnear highlighted a number of other new reforms aimed at improving efficiency in terms of time, costs, procedures and the selection of arbitrators.

The seventh chapter contains a very complete presentation made by Juan Fernández-Armesto on the subject of the fight against corruption from the point of view of arbitration.

The vision that initially prevailed in arbitration, which understood the fight against corruption as going beyond the mission of arbitrators, leaving allegations of corruption to the exclusive competence of national judges and prosecutors in criminal matters, has changed in recent years so that today acts of corruption are unanimously considered contrary to international public order.

From the point of view of private law –Fernández-Armesto stated– the establishment of acts of corruption can lead to nullification of the contract. In commercial arbitration, the most frequent case involves contracts that cover up corrupt payments, the purpose of which is to give an image of legitimacy to such payments. Another group of cases concerns contracts that have been obtained through corrupt payments. With regard to investment arbitration, the first group of cases are ones in which the investor commits acts of corruption in order to make his investment or obtain a concession. Another set of situations, which are less frequent, are ones in which the investor claims to have refused to make corrupt payments and to have been retaliated against by the state with expropriation or unfair and inequitable treatment.

On the basis of this typology, Prof. Fernández-Armesto makes an exhaustive analysis of the four possible groups of cases raising a whole series of questions, such as whether the arbitration tribunal has jurisdiction to prosecute acts of corruption and their effects, and what the standards of proof are and who bears the burden of proof. After studying some reference cases, Fernández-Armesto concludes that although corruption is difficult to prove it does not imply that an exceptional standard of proof should be required. The court may also be convinced by circumstantial evidence or inferences in the face of a party’s refusal to provide requested evidence.

Fernández-Armesto concludes by stating that international arbitration has currently taken a highly combative stance against corruption, and nobody questions that corrupt payments are a violation of international public order, with the results that the contract is void (unless the in bonis party prefers to validate it), the contracting party has no action and the investor has no active legitimacy.

In chapter eight, Charles Brower makes a lively defence of investment arbitration, which he sees as undergoing a false “crisis of legitimacy.” Brower reviews the critical arguments and explains why in his opinion they are not correct and reveal a partial, often ideological, view: investment treaties are not ineffective or harmful; arbitration does not have a single face, pro-investment and anti-state; the proceedings are not secret; investment arbitration does not threaten state sovereignty; and its effect is not a “regulatory chill.”

Judge Brower details the background to the debate, its evolution and current situation, and scrutinises the alternatives to the traditional system of conflict resolution, also entering into the question of substantive standards and their delimitation. Finally, with a sentence from Judge Schwebel he summarises the arguments for mobilisation in favour of investment arbitration: “International investment law is a profoundly progressive development of international law: it should be encouraged rather than denounced and restricted.”

Chapter nine is a lecture by another of the great figures in international arbitration present in these pages, Julian Lew. Professor Lew deals with a subject of enormous importance and no less complexity: the notion of transnational public order and its application by international arbitration tribunals. After defining the notions of domestic and international public policy and the nature of binding rules, Lew analyses what should be understood by genuinely international (i.e. transnational) rules of public policy applicable to international arbitrations. In this context, he notes the existence of regional public policy rules, such as those that have been established within the European Union. On the basis of a generalised international consensus, the principles of transnational public policy include the universal standards and norms of conduct that must be applied in all arbitration forums: fundamental rules of natural law and principles of universal justice; international public law jus cogens rules; and generally accepted principles of morality.

Professor Lew then analyses the development, sources and specific content of transnational public order, focusing in particular on the prohibition of acts of corruption, illegal trafficking and terrorist activities, and then examines its concrete application by international arbitration tribunals.

His conclusions are very clear: transnational public policy is a standard distilled from the fundamental principles of national public policies; it is directly applicable in international arbitration and it is arbitral tribunals that determine its content and how it should be applied in each case; and, finally, the standard and the burden of proof must respond in each specific case to the facts, the arguments of the parties and the composition of the arbitral tribunal.

In chapter ten, the immediate past president of the ICC, Alexis Mourre, addresses the issue of soft law as a condition for the development of confidence in international arbitration. Mourre warns of the ambiguity that the proliferation of guidelines, rules and codes of soft law entails, which shows the extent to which the international arbitration market may, on the one hand, have become autonomous with respect to states but also, on the other hand, may erode public confidence in arbitration. The danger for arbitration is in a widening of the gap, a possible disconnection between public expectations and the way the arbitration community perceives itself. This, in Mourre’s view, increases the pressure on the arbitration community to adopt meaningful self-regulation, particularly with regard to the conduct of lawyers and the ethics of arbitrators. In this context, the development of soft law is, according to Mourre, an element of objectification of arbitration that increases confidence and acceptability of the process.

Mourre understands that it cannot be considered that we have reached a point of stabilisation in the process of structuring arbitration as an international justice system. With regard to soft law, its ‘undemocratic’ nature has sometimes been called into question, also pointing out that the multiplication of rules and good practices would be incompatible with the autonomy and freedom of the parties and the court.

According to Mourre’s analysis, these questions raise more general questions about the legitimacy of standard-setting by professional bodies such as the IBA, the ICCA and the Chartered Institute of Arbitrators. He highlights that guidelines and standards should be developed by organisations with sufficient representativeness and expertise, by working groups that are themselves sufficiently representative and broadly consulted, and the outcome should reflect the cultural diversity of the arbitral community.

As for the possible limitation of arbitral autonomy that soft law would imply, Mourre argues that soft law instruments are in fact an element of flexibility for arbitral tribunals and parties. Having the possibility to use pre-established soft-law rules, which the arbitral tribunal is free to adapt to the specificities of each case, would always be a much more satisfactory solution for the parties than the imposition of unexpected rules by the tribunal.

The IBA guidelines on certain matters, such as conflicts of interest, representation of parties and taking evidence, are decidedly not mandatory but they have achieved a certain degree of standardisation. This has not prevented the courts from derogating from them in individual cases. Although the Guidelines on Party Representation have achieved less acceptance than the other two IBA codes, partly because of criticism by some bar associations, Mourre points out that only transnational standards adapted to international arbitration practice can adequately address ethical and party representation issues.

In short, the way in which the transnational law on arbitration is generated and consolidated is precisely through the drawing up of guides or guidelines, rules and non-binding standards, which reach a certain degree of normativity due to the general consensus they obtain and the consequent feeling of moral obligation for arbitrators and parties to apply them. Without soft law, arbitration would not be able to progress as a global and autonomous justice system, including with regard to new regions of the world such as Africa, where it is starting to expand. Soft law is therefore a condition for arbitration to maintain the confidence of states and the public thanks to its capacity for self-regulation, and therefore to continue to be perceived as a legitimate and effective instrument for resolving international disputes.

In chapter eleven, Professor Klaus-Peter Berger of the University of Cologne addresses the issue of institutional arbitration from a three-pronged perspective: harmony, disharmony and the “paradox of party autonomy.”

Prof. Berger argues that institutional arbitration is as much a “creature of the contract” as its ad hoc counterpart insofar as by publishing their rules and standard clauses the arbitration institutions make a permanent offer (“offer ad incertas personas”) to administer arbitration under their rules. This offer is tacitly accepted by the parties at the time they initiate the procedure, typically with a request for arbitration addressed to the institution. It is in the outplay between the interpretation of its rules by the arbitral institution and the autonomy of the parties that the more detailed questions discussed by Professor Berger in his contribution arise.

A first scenario in which the parties have only referred in the arbitration clause to a certain institution without including its rules can be solved by a “harmonious interpretation” of the arbitration agreement as a consequence of the transnational principle of interpretative effectiveness (“in favorem validitatis”) of arbitration clauses. In a second scenario, in which the parties refer to the rules of an arbitral institution but have not stipulated which arbitral institution should administer the arbitration –or even if it should be any arbitral institution at all– the solution should be similar to the above in the vast majority of cases.

This principle of “harmonious interpretation” reaches its limits, following Berger, in cases where the parties have stipulated that the arbitration should be governed by the rules of a given institution but the procedural rules to be applied are the rules of a different institution. In these cases, where there is confusion or error in the parties’ intention, the pro-arbitration option of the courts has been to reclassify the arbitration as ad hoc, administered by one arbitration institution but according to the rules of the other.

According to Berger, the principles applicable to these cases can also be extended to situations where the parties do not wish to conduct themselves according to the mandatory rules of the arbitration institution. The supervisory function and the contractual origin of the link between the parties and the arbitration institution mean that the logical solution in these situations, when it comes to rules that are essential for the arbitration institution, is to refuse to administer the arbitration. If the parties decide to continue with the arbitration it becomes an ad hoc arbitration, again showing that the boundaries between the two forms of arbitration are permeable.

Finally, there are scenarios in which as part of its discretion in exercising its arbitration administration function the administering arbitral institution may ignore the agreement of the parties on a procedural issue. Cases of this kind have arisen, for example where emergency procedures are applied to limit the number of arbitrators to one, as opposed to the three agreed in the arbitration clause. In these cases, the courts have decided in a non-uniform manner. The Supreme Court of Singapore, for example, has adopted “a pro-institutional rule” in what constitutes a manifestation of ‘the paradox of party autonomy,’ in the end opting, by virtue of that autonomy, for the decision of the arbitral institution. Prof. Berger’s conclusion is that, however, generally speaking it should be the agreement between the parties stipulated in the arbitration agreement that should prevail over the discretion of the institution.

Finally, chapter twelve closes this collection of excellent papers with a contribution by the current Secretary-general of the Permanent Court of Arbitration in The Hague, Ambassador Hugo Hans Siblesz, in which he considers how national legislation on freedom of public information affects investment arbitration.

This question is at the heart of the current debate on the tension between the principles of transparency and confidentiality in the resolution of investment disputes. How do arbitration tribunals react when states grant or deny access to protected information pursuant to a request based on freedom of information legislation? And what happens when an obligation of transparency clashes with a duty of confidentiality? Furthermore, such requests may have procedural implications. How can they affect the conduct of arbitration, and are these effects different depending on the timing of the procedure in which the request for access to classified information is granted?

The request for access to protected information, Siblesz explains, can be made by representatives of a civil entity with an interest in the arbitration or by one of the parties, who hopes to so obtain documentary evidence that he would not have obtained otherwise. It is noted that most of these requests around the world have been made by journalists, which has led to the media playing a major role in demanding greater transparency in arbitration.

When refusing such access to classified information, states invoke the exceptions set out in classified information legislation: the effect on the state’s foreign policy and foreign relations; or the need to protect state, professional or commercial secrets. Characteristically, there are many more occasions when states deny access than when they grant it. And in general they are more open to granting it if the rules of the arbitration institution that administers the arbitration are more favourable to publicity than to confidentiality, or at least they do not rule on this dichotomy.

In relation to applicable standards for publicity, the UNCITRAL Rules on Transparency in Investment Treaty Arbitration are in line with the protection/publicity levels of freedom of information legislation. Here a balancing act takes place between the state and the arbitral tribunal regarding the confidentiality/transparency of certain documents, and the same applies if confidential documents of the proceedings are required by a third party.

Although the right of citizens to access confidential information from their governments is very different from the right of investors to obtain certain documents in an investment arbitration, it is nevertheless true that there are certain analogies between the two. Finally, Siblesz questions whether the standards and procedures required for the disclosure of documents under freedom of information legislation and the confidentiality rules of the arbitration proceedings are converging, overlapping or interfering with each other. After carefully analysing several of the most relevant arbitration decisions, the PCA Secretary-general concludes by proposing not only the need to minimise possible frictions between these two levels but also to ensure that they complement and reinforce each other. The objective would be to overcome the gap between the applicable standards in requests for access to classified information and in investment arbitration.

In this way, the book that we present is a gallery of very interesting incursions into specific, and sometimes relatively micro, aspects of issues that today concern commercial and investment arbitration, but through these miniatures a broad vision of the forest behind it is often achieved.

To conclude, it was Erasmus of Rotterdam who made the connection between arbitration and libero arbitrio. And Hugo Grotius, the internationalist jurist under whose aura we have hosted our Annual Conferences, also a great humanist and admirer of Erasmus, stressed that arbitration is the realm of autonomy of freedom and rational balance. If we had to summarise these twelve Hugo Grotius Conferences it is in these sentences that we would possibly find their best expression.

José María Beneyto

Professor of International Law, European Law and International Relations, and Director of CIAMEN.

Visiting Professor at Harvard Law School